Also known as:non-mutual collateral estoppel · nonmutual issue preclusion
Written by attorneys · grounded in primary & secondary sources — see below
A form of issue preclusion that permits a nonparty to an earlier action to prevent a party from relitigating an issue determined against it in that action. The doctrine applies whether the nonparty invokes the prior determination offensively to establish an element of its own claim or defensively to bar relitigation of an issue already lost. Application requires that the issue was actually litigated and necessarily decided in a prior proceeding that afforded the precluded party a full and fair opportunity, and that using the prior judgment remains fair to the party bound.
Sources & Authorities· 1 primary source
Select any source to read its text and confirm it supports the definition.
Cases
Study Supplements
Dictionaries
How it applies
Common Examples
2
Government Judgment Invoked by Private Plaintiffs
The State Attorney General obtained a final judgment after trial establishing that Summit Career College knowingly falsified graduate job-placement statistics. Former students Lopez and Chen later sued the college in federal court for tuition refunds and moved to preclude the college from denying the falsification. The court granted the motion because the college had a full and fair opportunity to litigate the issue in the enforcement action and applying preclusion was equitable under all the circumstances.
Prior Finding Used Against Party in Later Proceeding
A D.C. administrative proceeding determined that a party had engaged in specific misconduct after full litigation. In a subsequent civil action brought by a nonparty, the court applied nonmutual offensive collateral estoppel to bar the party from relitigating the misconduct finding. The court first confirmed that the traditional elements of collateral estoppel were satisfied and then concluded that fairness supported preclusion given the party's prior opportunity to litigate.
In re Wilde68 A.3d 749 (D.C.2013)
Common questions
Frequently Asked
4
When may a nonparty use a prior judgment offensively to preclude relitigation?+
A nonparty may invoke offensive nonmutual issue preclusion when the precluded party had a full and fair opportunity to litigate the issue in the first action and when applying preclusion is fair to that party under all the circumstances. Fairness turns on factors such as the defendant's incentive to litigate vigorously in the prior case, the procedural protections available, and the absence of inconsistent judgments or wait-and-see tactics by potential plaintiffs.
Supporting sources
Does offensive nonmutual collateral estoppel require mutuality of parties?
No. Modern doctrine permits a nonparty to the first action to invoke issue preclusion against a party that litigated and lost the issue, provided the traditional elements are met and fairness supports application. The Supreme Court has approved this use when equitable to the defendant.
Supporting sources
What fairness considerations limit offensive nonmutual issue preclusion?+
Courts examine whether the defendant had a strong incentive to litigate in the first action, whether the stakes and procedural opportunities were comparable, whether the plaintiff could have joined the earlier suit, and whether preclusion would produce inconsistent results or reward strategic delay. When these factors indicate inequity, preclusion is denied even if the formal elements are satisfied.
Supporting sources
Can a prior government enforcement judgment support offensive nonmutual preclusion in a later private suit?+
Yes, provided the issue was actually litigated and necessarily decided and fairness to the defendant is satisfied. Courts routinely permit private plaintiffs to rely on findings from government actions when the defendant had every incentive to defend vigorously and no procedural disadvantage existed in the first proceeding.
Supporting sources
Civil ProcedureVerdicts and judgments · Effect; claim and issue preclusionUBEFoundational